HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Muzaffar Khan
Applicant
-and-
CCSI COMPUCON Systems (Formerly Getronics Canada)
Respondent
DECISION
Adjudicator: David A. Wright
Indexed as: Khan v. CCSI COMPUCON Systems
APPEARANCES
Muzaffar Khan, Applicant ) Sheldon Erentzen, Counsel
CCSI Compucon Systems (formerly Getronics Canada) ) Jeremy Hann, Counsel
1This Decision determines whether this Application, filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the Code) should be dismissed under s.34(11) of the Code because of a civil proceeding seeking a remedy for the violation of the Code. The applicant, who was employed by the respondent from January to November 2008, alleges discrimination in employment on the grounds of race, place of origin, ethnic origin, disability, creed, and family status.
2The applicant argues that because he has brought a motion to the court to stay and subsequently amend his Statement of Claim in the civil proceeding to remove references to the Code, the Application should not be dismissed. This Decision requires me to consider whether the Court motion should affect the Tribunal’s Decision on whether this Application should be dismissed.
BACKGROUND
3A hearing was held on November 12, 2009. The background to the hearing is set out in the Tribunal’s Interim Decision in this matter, 2009 HRTO 1021, at paras. 2-7:
In his Application, the applicant advised that there has been a court action based upon the same facts as the Application, that he asked the court for a remedy based on the discrimination, and that the court action is still going on. The Tribunal issued a Notice of Intent to Dismiss on the basis that it appeared that a civil proceeding been commenced in a court in which the applicant is seeking an order under s. 46.1 of the Code. The applicant was invited to make written submission as to why he believes the Application is within the Tribunal’s jurisdiction. The applicant argues that the civil proceeding is to seek damages for wrongful dismissal, does not seek reinstatement and is not being processed based on human rights grounds.
I have reviewed the Statement of Claim. It seeks damages for wrongful dismissal, alleges (at para. 16) that the dismissal was “motivated primarily and, or, fully on account of the medical limitations and restrictions arising from the plaintiff’s disability” and (at para. 20), seeks damages arising from the “nature and manner of termination” including “the defendant’s refusal to accommodate the plaintiff’s return to work on a gradual and/or modified basis”. The Statement of Claim does not refer to any of the other grounds of discrimination alleged by the applicant, nor to events alleged in the Application such as harassment, denial of medical leave, discrimination in scheduling, and denial of training opportunities.
Section 34 (11) of the Code provides:
A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,
(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or
(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.
Section 46.1 reads as follows:
46.1(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
(2) Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
In the circumstances, it is appropriate to hear oral argument from the parties on whether the Application is barred, in whole or in part, by s.34(11) of the Code. Accordingly, the Registrar is requested to schedule a one-day hearing to deal with this preliminary issue, and to deliver the Application to the respondent, together with this Interim Decision. The respondent shall file a Response in Form 2 within 35 days of the date of this Interim Decision, but need only complete sections 1-5 and 21 at this time.
4On November 9, 2009, counsel for the applicant served on the respondent a motion record in the civil proceeding seeking: (1) an order staying the Court proceedings pending the adjudication of the proceedings at the Tribunal, and (2) an order permitting the plaintiff to amend the statement of claim “to remove such claims as are adjudicated by the Human Rights Tribunal of Ontario within 30 days of the lifting of the stay”. Several days following the hearing, the applicant’s counsel sent a revised motion that specified the proposed amendments that would be sought following the lifting of the stay. The Tribunal has received no further correspondence and there is no indication the Statement of Claim has in fact been amended.
5Both parties rely on Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, in which the Tribunal discussed the following principles applicable to the interpretation of s. 34(11):
Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.
To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.
6Counsel for the applicant argues that the Application should not be dismissed under s. 34(11). While he acknowledges that parts of the Statement of Claim raise Code issues, he argues that the majority of the civil claim seeks damages for the manner of dismissal, which do not relate to the application of the Code. He states that the Application should be allowed to proceed in light of the motion that was filed, in which he expressly seeks a stay of the civil proceedings and amendments that remove reference to matters before the Tribunal. He also argues that certain events and grounds in the Application are not included in the civil proceeding and predate the events that are raised in that proceeding.
DECISION
7In my view, the motion to amend the Statement of Claim should have no bearing on the analysis. The primary relief sought is a stay of proceedings of the civil proceeding, and the amendments would only be made after the Tribunal makes its decision. If the Court grants the motion, the applicant’s claim will remain outstanding, with the request to amend the Statement of Claim to be determined after the Tribunal proceedings are complete. This would be inconsistent with both the wording and the purpose of s. 34(11).
8First, the provision is clear that it applies when a court proceeding is commenced and has not been finally determined or withdrawn. Neither a stay nor a future intent to amend affects the proceedings.
9Second, the purpose of the provision, as set out in Beaver, is to eliminate duplicate tribunal and court proceedings alleging breaches of the Code. Allowing an applicant to proceed with an application while a court proceeding alleging breaches of the Code remains outstanding would not be consistent with that purpose or fair to the respondent. Accordingly, I will not consider the request for the stay or the proposed amendments in making this Decision.
10Upon a review of the Statement of Claim as a whole, it is apparent that the applicant has asked the Court to find that the Code has been violated and has sought damages based on that alleged infringement. While, as the respondent acknowledges, there are some additional grounds of discrimination and events earlier in his employment that are not specifically included in the Statement of Claim, in my view s.34(11) still applies. It would not be consistent with the purpose of s. 34(11) to permit an applicant to avoid the application of s. 34(11) by making reference to some, but not all alleged discrimination arising out of the same general set of facts. While there are brief and vague references in the Application to other alleged events, a reading of it as a whole, including the remedies sought, makes clear that the essence of the Application relates, like the court Claim, to his termination from employment. Moreover, it must be taken into account that Statements of Claim in civil proceedings are often drafted in more general terms, and with less particularity, than the Tribunal expects in applications to it.
11Accordingly, I find that this Application is barred by s. 34(11) of the Code.
12The Application is dismissed.
Dated at Toronto, this 18^th^ day of December, 2009.
“Signed By”
David A. Wright
Interim Chair